by Andrea Bianchi and Alexis Keller (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 438pp. Hardback. $115.50/£55.00. ISBN: 9781841138183.
Reviewed by Andrew Lynch, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. Email: a.lynch [at] unsw.edu.au.
Vol. 19 No. 3
Timing is everything in publishing. The impact and importance of a book is not simply determined by its quality but also the prevailing circumstances when it reaches its audience. The publication of COUNTERTERRORISM: DEMOCRACY’S CHALLENGE – an extremely well-written and generally thoughtful collection of essays edited by Andrea Bianchi and Alexis Keller – in the latter half of 2008 is a powerful demonstration of this principle.
Through no fault of any of the contributing authors, the standing of this book is undeniably altered by the curtain falling over the final days of the administration of George W Bush. Although it remains far too early to assess the extent to which President Obama will, in the context of national security, substantially deliver on his campaign platform of change, we have clearly broken with the recent and dismal past. Obama’s attitude to the conflicts of Iraq and Afghanistan and his almost immediate action taken to close down Guantanamo Bay are themselves sufficient evidence that both the dominant rhetoric and policy basis have fundamentally shifted. The ‘war on terror’ has been thoroughly discredited and met its demise.
Terrorism remains, of course, a very real danger which liberal democracies must confront and quell. The devastating attacks in Mumbai towards the end of 2008 are themselves a terrifying illustration of this fact. The essays in this book certainly have plenty to say on this challenge, but as several of them are written in response to the extreme and grievously harmful policies of the Bush administration, it is difficult for the reader not to feel that with its departure, they have been robbed of their urgency. The essays predominantly offer a powerful condemnation of the policies and laws implemented by the United States since September 11. Three or four years ago, this book would have packed a serious punch. Now, much of it reads more like an examination of our recent past.
This hardly renders irrelevant the efforts of all involved in this project. Far from it – we are going to be trying to make sense of the opening years of the 21st Century for many, many years. It is vitally important that contemporary analysis of the Western world’s response to 9/11 continue to be published and debated. As Adam Roberts, the author of the first chapter in the book, says with perspicacity, “the tendency to approach terrorism without benefit of history has, itself, a long history” (p.12). Perhaps the only worthwhile legacy to hope for from recent failures is to ensure that, this time, the lessons are heeded as we move forward from here. Reading [*183] COUNTERTERRORISM: DEMOCRACY’S CHALLENGE in this light, there is no doubt that it will be an important resource for those who continue working in the area of legal responses to the threat of terrorism – and also those who will come to it in the years ahead.
The book is divided into three distinct parts. The first consists of four chapters which aim to provide the reader with an historical perspective on the fight against terrorism. After a ubiquitous dissection of the definitional problem, which Roberts resolves in an entirely practical and satisfactory way, his chapter proceeds on the quite reasonable basis that, although today’s terrorist threat involves a combination of elements many of which are new, it is however a “huge mistake” (p.14) to brush aside earlier historical experience as somehow irrelevant. He then lists ten propositions derived from earlier terrorism campaigns. I do not disagree with his inclusion of any of these entries, but some clearly stand out. His first, that the relationship between terrorism and democracy is frequently complex, is probably the most important and least understood and could easily sustain a much longer examination (see, for example, Ross 2004). Amongst the other lessons is one which governments have been reluctant to even countenance in recent times – the need to address underlying grievances. Roberts makes the valuable point that “to refuse all changes on an issue because a terrorist movement has embraced that has a justification is actually to allow terrorists to dictate the political agenda” (p.20). Lastly, his reminder of the importance of observing the constraints of domestic and international legality – and indeed the political desirability of doing so, is a proposition that runs through every later chapter in the book.
Of course, it has been this very idea that has been most under threat over the decade, as governments have sought to justify throwing off the shackles upon their own power in the name of national security. How impressive then to read several contributions in this volume which explore the factors which lead to the end of terrorist groups and their violent campaigns. Of these, Audrey Kurth Cronin’s chapter is most similar to that of Roberts – she also identifies the developments which make ‘new’ terrorism different from what preceded it – but she offers a very specific analysis of the ways in which political violence of non-government actors is brought to an end. Reflecting Cronin’s background as a Professor of Strategy at the US National War College, her take on these issues is noticeably hard-headed in comparison to some of the other offerings here. But she shares the conviction of her fellow contributors that steps which are taken by governments ‘that feed into the world-view of [terrorist] groups and thereby increase their legitimacy’ (p.107) are fundamentally unhelpful. In his chapter, Paul Wilkinson echoes Roberts by identifying almost every domestic and international strategy which the Bush administration pursued under the rubric of the ‘war on terror’ as meeting this description – especially Guantanamo Bay and the insistence on extra-judicial procedures for its inmates, and the public relations disaster of Abu Ghraib and the White House’s attitude toward torture and the treatment of its prisoners. While Wilkinson admits that no single model of response by a liberal state can alone suffice to deal with terrorism of [*184] the sort practiced by Al Qaeda, a commitment to the criminal justice model as much as possible is his final recommendation. He recognises that some terrorism threats necessitate the deployment of the military but stresses that the risks this poses must constantly be borne in mind. At all costs, over-reliance on the military by the executive and the normalisation of its presence in civilian life is to be avoided.
The one chapter in the first part of the book which seems an odd fit is that provided by one of the editors, Alexis Keller. His stated purpose is to pinpoint both the liberal and republican claims in the debate about emergency powers by focusing on the constitutional theory of both Montesquieu and Rousseau and by considering their definition of ‘legitimate emergency.’ What follows is indeed a direct consideration of the philosophy of each and this certainly clarifies much of the history of this thorny jurisprudential area, but the conclusion to the chapter only emphasises its strange remoteness from more recent contributions to the debate (e.g., Dyzenhaus 2006; Gross and Ní Aoláin 2006). It seems churlish to criticise a chapter as good as this and which appears in a part dedicated to historical considerations, on the ground that the author might have made greater efforts to connect his discussion to recent events, but Keller’s failure to do so does rather set his work apart from that of the other chapters in Part One.
An interesting theme which bubbles away under these early chapters is European incomprehension at the American response to terrorism since 9/11. Only Cronin, the sole American contributor in this part, fails to make some mention of this. It is enormously interesting then, at the start of Part Two, to turn squarely to the jurisdiction of the United Kingdom – a country with a long history of terrorism but also America’s staunchest ally in the foreign operations conducted as part of the ‘war on terror.’ Dominic McGoldrick’s chapter is titled ‘Terrorism and Human Rights Paradigms - The United Kingdom after 11 September 2001,’ and this is no idle promise. At 120 pages long, McGoldrick’s chapter gives readers a detailed coverage of the UK experience. For readers who have followed developments there closely, much of this will seem largely descriptive, but even for such an audience it is indubitably a beneficial and succinct account for future reference. McGoldrick strongly conveys the shifting dynamic between the arms of government under the Human Rights Act 1998 and the precarious status of the new constitutional settlement due, in no small part to competing appeal of enhanced state security (see also Gearty 2006).
The emerging role of the judiciary in the United Kingdom is a topic which substantially contributes to two other chapters in Part Two. Eyal Benvenisti attempts, with only moderate success, to place the recent case law from the House of Lords on security matters in a broader comparative perspective. His argument that national courts have proved less than compliant on security matters and have instead sought to establish a dialogue with the political arms of government is borne out by some judicial decisions but not necessarily all. In particular, the 2007 House of Lords decisions reviewing several control orders issued over suspected terrorists have attracted stern criticism from some [*185] who see the protection offered by the judiciary as largely illusory (Ewing and Tham 2008). That may well be an overstatement – but then so, it appears to me, is Benvenisti’s claim that instances of judicial assertiveness are evidence of ‘an emerging trend of coordination amongst the highest courts of several democratic states’ (p.275). In offering a comparative study of judicial deference to executive security actions, Iain Scobbie’s chapter addresses very similar considerations to those covered by Benvenisti, but as it is not as ambitiously pitched, the result is a more sober analysis of commonalities and differences in how superior courts in the same jurisdictions have been performing. It is a little premature to elucidate anything approaching a ‘grand theory’ of the judicial response to executive and legislative security measures of recent times. I accept the argument of both contributors that international law provides the means by which such connections might occur, but whether such ‘coordination’ is an inevitable development remains to be seen. What is good about both these chapters is that in scrutinising the judiciary they have a topicality which survives undented those seismic changes to the political landscape discussed at the outset of this review.
The remaining chapters in Part Two of COUNTERTERRORISM: DEMOCRACY’S CHALLENGE cover different issues under the broad theme of ‘balancing’ security with individual freedom (the part heading is unfortunate since the ‘balance’ metaphor has long been criticised: Waldron 2003). To focus on just one of these contributions, David Cole argues that under American law the crime of providing ‘material support’ to a terrorist organisation is nothing more than guilt by association dressed up to avoid constitutional objection. The lack of a specific intent requirement means that the crime is so widely cast as to depend heavily on executive discretion and thus seriously inhibits freedoms central to a functioning democracy. There is little argument to be made in retort. However, the idea that Cole raises which most captured this reviewer’s attention was that a broader attack on the ‘paradigm of prevention’ and scepticism of any domestic laws supported by reference to it is justified by the abject failure of the preventive rationale in respect of the international activities of the United States. Given the holistic way in which the ‘war on terror’ was sold to the public, such an approach seems only reasonable.
The final part of the book is provocatively titled, ‘Is There a Need for New Legal Paradigms?’ Others have suggested elsewhere that a major rethinking of how law deals generally with risk and futurity appears increasingly necessary (e.g., Zedner 2007), but neither chapter tackles this significant challenge. It is perhaps rather surprising that there are only two chapters offering a response to the question posed. What is even more surprising is the answer given by Michel Rosenfeld, which cannot be reconciled with the views expressed in many earlier chapters. Rosenfeld seeks to examine the process of “judicial balancing” in the relevant decisions of the House of Lords, the United States Supreme Court and the Israeli Supreme Court. Although he is upfront about the differences between these three jurisdictions, including their experience with terrorism, the attempt at comparison (which other authors in the [*186] book also make) still seems uncomfortable. To my mind, the security situation in Israel is so particular as to present real obstacles to the extraction of conclusions more generally about judicial method in security cases. Although various policies of the United States in prosecuting the ‘war on terror,’ namely the use of ‘enemy combatant’ status, have parallels with the Israeli context, these similarities are more manufactured than they are natural. All rhetoric aside, it is hard to see what substantial differences exist between the domestic challenges for the United States and United Kingdom in fighting terrorism. However, by looking at all three countries together, the war paradigm seems more relevant than it otherwise might.
Rosenfeld argues that so long as we continue living in a ‘time of stress’ (as distinct from one of crisis) the courts will need to approach terrorism cases as falling outside both the war and criminal justice models. Instead, “it seems appropriate to aim for a new paradigm, the ‘war-on-terror’ paradigm” (p.392). There follows a rudimentary explanation of why this defies a conventional war mindset, though not much of a hint as to the deficiencies of the criminal justice model. Although a good collection of essays will often feature a diversity of views, this is all a bit hard to swallow in the penultimate chapter and hot on the heels of some devastating rejections of the logic which underpinned Bush’s ‘war on terror.’ Rosenfeld’s chapter is certainly thought-provoking, but it is incongruous amongst the rest of this work and almost certainly now obsolete.
The book concludes with Andrea Bianchi’s thoughts on the matter of new paradigms. He has in mind something rather different from Rosenfeld, and considers the agglomeration of power in the United Nations Security Council caused by the spectre of international terrorism. In particular, he draws attention to the extraordinary power and process of applying sanctions to individuals and organisations pursuant to Resolution 1267, while also commenting on the general legislative function embraced by the Security Council after September 11. The fact that much of this initially occurred to the detriment of human rights before being “spontaneously” corrected through the emergence of “an inchoate system of ‘checks and balances’” (p.418) prompts Bianchi to ponder the wisdom of efforts to constitutionalise the field of international law. He concludes that different explanations may be given of these recent developments while confessing a preference for that which points to the organic “peculiarities of international law” (p.421) over the importation of a constitutional paradigm into this field.
COUNTERTERRORISM: DEMOCRACY’S CHALLENGE is a worthwhile book for those who teach and research the domestic and international challenges and changes ushered in by the 2001 terrorism attacks on the United States. Although parts of the book now seem to have been somewhat superseded by a pulling back from the exceptionalism that was the hallmark of the immediate response to those events in many liberal democracies, those contributions are still valuable. The chapters analysing judicial decision-making remain especially topical, concerning as they do the perennial question of how courts can [*187] protect rights while remaining mindful of the demands for security.
Dyzenhaus, David. 2006. THE CONSTITUTION OF LAW: LEGALITY IN A TIME OF EMERGENCY. Cambridge: Cambridge University Press.
Ewing, K.D and Tham, Joo-Cheong. 2008. ‘The Continuing Futility of the Human Rights Act.’ PUBLIC LAW 668-693.
Gearty, Conor. 2006. CAN HUMAN RIGHTS SURVIVE? Cambridge: Cambridge University Press.
Gross, Oren and Ní Aoláin, Fionnuala. 2006. LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE. Cambridge: Cambridge University Press.
Ross, Daniel. 2004. VIOLENT DEMOCRACY. Cambridge: Cambridge University Press.
Waldron, Jeremy. 2003. ‘Security and Liberty: The Image of Balance.’ 11 JOURNAL OF POLITICAL PHILOSOPHY 191–210.
Zedner, Lucia. 2007. ‘Preventative Justice or Pre-Punishment? The Case of Control Orders.’ 60 CURRENT LEGAL PROBLEMS 174-203.
© Copyright 2009 by the author, Andrew Lynch.